Eggleston v. Primrose Petroleum Co., 8740.

• Decision Date: 10 February 1932
• Docket Number: No. 8740.,8740.
• Citation: 47 S.W.2d 359
• Parties: EGGLESTON v. PRIMROSE PETROLEUM CO.
• Court: Texas Court of Appeals

47 S.W.2d 359

EGGLESTON v. PRIMROSE PETROLEUM CO.

No. 8740.

Court of Civil Appeals of Texas. San Antonio.

February 10, 1932.

Rehearing Denied March 16, 1932.

Appeal from Frio County Court; John L. Pranglin, Judge.

Suit by the Pearsall Cotton Oil Company against the Primrose Petroleum Company, in which George B. Eggleston was impleaded. Plaintiff recovered judgment against defendant first named, and defendant first named recovered over against the impleaded defendant, and the impleaded defendant brings error.

Affirmed.

M. L. Roark and Henry C. King, Jr., both of San Antonio, for plaintiff in error.

Walter Groce, Bernard Ladon, and Wier & Wier, all of San Antonio, and Magus Smith, of Pearsall, for defendant in error.

FLY, C. J.

This is a suit for damages instituted by Pearsall Cotton Oil Company against Primrose Petroleum Company, arising from a failure to deliver fuel oil ordered by said Cotton Oil Company from the Petroleum Company; the damages being based on the failure to deliver the oil. The Primrose Petroleum Company impleaded appellant, who applied for this writ of error as against a judgment rendered in favor of the Cotton Oil Company as against the Petroleum Company, for $768, and in favor of the Petroleum Company over against appellant.

There being no statement of facts, the findings of fact of the county judge necessarily become the conclusions of fact of this court. They are as follows:

"Plaintiff on or about the 4th day of August, 1926, ordered one car of fuel oil from defendant, The Primrose Petroleum Company, said car of oil to be shipped on August 15th, and plaintiff when placing said order notified defendant, The Primrose Petroleum Company's Agent, that it would not have a place to put said oil until that time but would need it on that date.

"Defendant, The Primrose Petroleum Company failed to ship said car of oil on the date agreed upon.

"Plaintiff called defendant, The Primrose Petroleum Company, on the 15th, 16th and 17th days of August, 1926, notifying them that plaintiff would have to close down its mill unless it received the oil ordered and that on each and every occasion the defendant, The Primrose Petroleum Company assured the plaintiff that said car of oil was being shipped and would be there at once.

"Thereafter on August 20th, 1926, in response to inquiry made by plaintiff, defendant wired plaintiff that said car of fuel oil had been shipped giving car number but that car of that number was never shipped. Defendant, The Primrose Petroleum Company had proper notice that plaintiff would be forced to close its mill if the oil was not delivered as per contract.

"Plaintiff thereafter secured oil from another source to reopen its mill which had been forced to close for want of oil.

"On August 26, 1926, a car of fuel oil was shipped from Three Rivers, Texas, by defendant, Primrose Petroleum Company to plaintiff.

"Plaintiff was forced to close its mill because of the lack of fuel and said mill was closed for 5½ days. The closing of said mill was due solely to the failure of defendant, Primrose Petroleum Company to ship the car of oil as specified.

"Plaintiff had many cars of cotton seed on the tracks which it could not unload because of the lack of fuel oil and plaintiff was forced to pay $218.00 demurrage charges on said cars so held up because of the lack of fuel oil.

"The reasonable rental value of plaintiff's mill was $100.00 per day and $550.00 for the 5½ days that it was shut down.

"The pleading first setting up rental value of the mill...